QASA: hit and myth

At the end of last month the Quality Assurance Scheme for Advocates got the go-ahead from Legal Standards Board, the über-regulator of law professions. In a series of posts we’ve looked at what this means for barristers and other professional advocates.

Myths dispelled

At the heart of the QASA scheme is, perhaps, a desire to dispel one or two myths about the Bar and, by extension, the judiciary.

The old boys’ network

The first is that all preferment is by reference to common membership of some sort of “old boys’ club”. That may have been true (up to a point) sixty years ago, but with the advent of legal aid, the Bar began to take on a much more egalitarian aspect. Barriers of race, gender and, perhaps most importantly, class began to be dismantled. It’s true that the Inns of Court resemble ancient public schools or university colleges and that membership of them requires a shared belief and trust in one another’s honourable conduct. So does being (as all solicitors also are) officers of the court. If there are any barriers to entry now, they are intellectual rather than social: pupillages are doled out like scholarships, and only the brightest and most worthy can win this coveted chance to make the coffee, print out the court bundle cases, and trot along at the heels of an established junior practitioner.

But if there is already a suspicion that those who have joined the club are best placed to help their fellow members get on, that is hardly going to be dispelled by a system under which judges (most of whom are ex-barristers) assess the performance of barristers and award them the accreditation to take on cases at the next level up.

Advocacy as a specialisation in itself

Another myth that QASA seeks to dispel, perhaps, is that barristers are better at advocacy simply because that’s what they are trained to do. The fact that they specialise in advocacy doesn’t, the argument goes, mean they are necessarily any better at it. But what the common system of accreditation for solicitor advocates, legal executives and barristers under QASA will achieve is to make people think non-barrister practitioners are “just as good” without asking themselves whether barristers may be better qualified in other ways, or more dedicated, or simply cheaper (being self-employed).

If QASA has the effect of creating a rough equivalence across all the different types of advocate, it will cause clients (in practice, for most work, the Government) to focus more exclusively on the criterion of price. Hence PCT or Price Competitive Tendering (see below).

The advocate as a champion of fairness

In fiction and film the defence lawyer is often portrayed as a down-at-heel champion, a knight-errant or, more prosaically, a cabbie worthy of his hire, ready to take on any case or client, however unattractive, that comes his way. This notion, crystallised in the “Cab Rank Rule” forbids a barrister, if he is otherwise qualified and available to defend a client, from turning them down on grounds of repugnance or distaste. This could make the barrister seem, in some ways, a sort of mercenary, ready to fight for anyone prepared to pay him, turning a blind eye to the moral consequences. But in reality the principle is a highly moral one: to ensure the just proceeding of a trial however rebarbative the client or his case.

The effect of QASA is to focus on something different. The question of whether you take on a case or not depends, not on inclination or philosophical principle, but rather on questions of price, qualification, and availability. On its own, QASA may not achieve this change of approach; but there is no doubt (as other, more impassioned observers have noted) that in this respect it is an essential paving of the way to PCT, which, by removing client choice, in effect removes any possibility of barristerial choice (or rejection) as well.

It certainly seems to have been no coincidence that the BSB recently commissioned a report on the Cab Rank Rule and that the report when published broadly rejected the continuing relevance of the rule in the current market for legal services. [For more on this, see our earlier post The Cab Rank Rule: still driving the Bar?]

Criticism of QASA

Critics of QASA have identified a number of fundamental flaws with the scheme. These fall roughly into two categories.

Flaws relating to advocates

First, those affecting the advocates themselves. In a ferocious posting on the Criminal Bar Association blog, Ian West identified three potential problems which make it “not fit for purpose”. I quote from his blog:

plea-only advocates (POAs) or non-trial advocates (NTAs, as they are now re-branded). It’s just plain wrong to embed a conflict of interest between a client and his lawyer. “Mr Scroat, I can represent you, so long as you plead guilty. I advise you to plead guilty.” I say no more.

Allocation of cases to levels by negotiation between litigator and advocate. Picture the scene in a solicitors’ office near you:
Grade 2 HCA to self: “I know it’s an armed robbery, and ordinarily a level 3, but its really pretty straightforward. Do you think you can handle it?”
Self to HCA: “Yes, I think so.”
All together: “We’re agreed then – it’s a level 2. Sorted.”

Inclusion of silks. BSB: “You may have proved your excellence to the QCA, but you haven’t proved your competence to us.”
The CBA is not against a QASA-type taxonomy which genuinely assures quality, but we say that the QASA scheme, as presently structured, will perpetrate a fraud on the public by giving cheap, bad advocates a badge of respectability that their talents do not warrant, and we will have nothing to do with such a scheme.

Flaws relating to the judiciary

The second type of flaw relates to the involvement of the judiciary, particularly as to the way they are involved, namely in assessing competence and qualification during the trial process. Judicial evaluation is the key form of assessment under QASA. Inevitably this creates a conflict of interest between the advocate and his client and the appearance of a risk of bias on the part of the judge, who is judging two different matters at the same time.

Now this may be more a matter of perception than actuality, but perception is important. It lies at the heart of the analysis of “apparent bias” in civil cases. See, for example, the line of authorities culminating in Porter v Magill [2002] 2 AC 357 and including the classic definition given by Lord Goff of Chieveley in R v Gough [1993] AC 646, 670, as refined in R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 2) [2000] 1 AC 119, 136, where Lord Browne-Wilkinson referred to Lord Hewart C.J.’s famous dictum, that it is “of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done:” see R v Sussex Justices, Ex p McCarthy [1924] 1 K.B. 256, 259. The test laid down in Porter v Magill was “whether the fair-minded and informed observer, having considered the relevant facts, would conclude that there was a real possibility that the tribunal was biased”.

If an advocate has a primary and fundamental duty to his or her client, he or she must be fearless in putting forward the client’s case even if, in so doing, he or she may antagonise or irritate the judge. If the judge reacts improperly, such that his or her decision appears to be motivated by prejudice or annoyance, to the disadvantage of the client, counsel can seek to appeal that decision. It is essential for the client to feel that counsel is acting in, and only in, the client’s interests. But if, at the same time, counsel is asking the judge to assess his or her performance, and the client knows this (for it would be quite improper not to tell the client), how can the client feel confident that both counsel and the judge are concentrating on the conduct of the case? How can the fair-minded and informed observer feel confident that justice is not only being done, but being seen to be done?

The risk of apparent bias goes the other way, too. For those who still buy into the myth (see Myths Dispelled, above) that the Bar and the Judiciary are one big cosy old-school club, the prospect of the one being assessed by the other must seem, well, a bit cosy. Surely, the cry may go up, among those of a suspicious mind, they will look after their own? For a scheme designed to allay public fears of protected incompetence, this seems less than wholly reassuring.

Misgivings about the involvement of the judiciary were voiced rather more entertainingly by Lord Justice Moses in his Ebsworth Lecture, Looking the Other Way, at Middle Temple on 13 February 2012. He makes fun of the way the art of advocacy has been distilled into myriad “performance indicators”, many barely distinguishable from each other, but each represented by a tickable box on a colour-coded form. A level 3 advocate must “comprehend the nuance of a case and readily offer sound solutions to situations as they arise” while a level 4 advocate must do all that and more, he or she must also “demonstrate an astute and responsible approach throughout”.